Crazy Idea: Actually Voting! (Part 1 of 2)
Congress wastes so much time and resources doing nothing. How can we force them to do their jobs?
- Legislative rules have not created an easy flow of discussion and movement of bills, but instead built weapons to be used against other Congresspeople and political parties.
- Many Amendments to the Constitution are needed in order to force bills to be discussed and voted upon in a timely manner.
- The leaders of each chamber must have their power to control the legislative process severely curtailed so that minority voices can be heard.
Let’s Talk About it
As we move through the remainder of Article 1 of the Constitution and the Amendments that impact it, there is not much that needs to be modified. We definitely need to look at Article 1, Section 4, Clause 1 because it relates to the day when Senators and Representatives are elected, but that is part of a bigger discussion on how elections should happen in general. Instead, let us focus for now on the duties of the legislative division of government.
Section 5 covers how Congress decides its own rules and procedures for doing business, making sure that there is a record of their activities, and keeping both chambers of Congress in session with each other. Moving on to Section 6, it straightforwardly notes that Congresspeople should be compensated for their services (more on this later) and makes sure they are not taking payments from places they should not. Section 7 is procedural dealing with how bills work through Congress and Section 8 covers the specific responsibilities Congress has. The next two sections are much the same, with 9 putting limitations and control on Congress — especially on trade, foreign influence, and honoring the law already established — and 10 making sure the States defer to the Federal government in matters of trade, coin, treaty, and war. All seems pretty cut and dry.
As such, you may be asking: what is the problem?
There is no doubt that Congress has become broken from the simple fact that so little legislation gets through; there is more time spent on using the made-up rules of Congress as weapons and technicalities than on organization and process; and that the items that do pass often are going through only on party lines or a thin margin with the other party involved. With few to no individually minded Congresspeople thinking of their constituents instead of their own party politics, we are in an era of stall and go-go-go that ebbs only as one party receives a small level of control of both chambers of Congress and the Presidency.
This is no way to govern.
While the changes made to the makeup of Congress and how Senators and Representatives are elected seem rather massive, they are relatively small tweaks to an existing process. At the end of the day, it is still a two-chambered legislature that has the same responsibilities, controls, and self-imposed rules that follows a process to shepherd a bill to a law. Yes, the intent was to limit the control of one party or another and get more voices in government, but it is not enough by itself that it could force Congress to act reasonably and accomplish their jobs.
Two in the Hand
The Senate is supposed to be the States’ check on the Federal Government. Surprise: it is not even close!
That is why more than tweaks are necessary here. Instead, we need to add whole additional sections to the Constitution to not just change who is having the conversations, but how they are having them and what the rules should be. The original Constitution was silent on most of the procedures of Congress, but we have already dealt with the long-term issues of Congress’s lack of oversight on that process. No, here we need to make sure we add language that forces Congress to be a thoughtful legislature and pay the price if they do not. In other words: Congress needs real accountability.
Crazy Idea: Actually Voting!
You have seen the headlines: The House of Representatives or the Senate has passed a piece of legislation and it is moving on to the other chamber. And then… nothing… absolutely nothing. There was great fanfare; this was an important piece of potential law that would cause a paradigm shift. Yet, despite all of this, it simply died and went away, never to be discussed again. What happened?
Article 1, Section 5, Clause 2 states:
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
And that is it. There are very few rules about how Congress is supposed to function and as such Congress has made up its own process over time. Whenever the news is talking about Congressional procedures and requirements, it is important to keep in mind that these are entirely fabricated by Congress and are inherently mutable. There is nothing in the Constitution that states how a bill is supposed to be presented, discussed, and passed on through each step of the system to become law. The few exceptions include Article 1, Section 7, Clause 1 that says, “All Bills for raising Revenue shall originate in the House of Representatives” and Clauses 2 and 3 that cover the bill moving from Congress to the President. These also cover how to deal with vetoes but are silent on any other part of the process.
Notice what is missing? There is not a mechanism to move legislation from one chamber to the other. That is where many of these Congressional rules have come into place and why legislation can die without ever being heard. It puts tremendous power in two peoples’ hands: The Speaker of the House and the Senate Majority Leader. Each has effectively complete control over the agenda in their chamber and if they decide that a piece of legislation should not be heard, then it will not be. This includes anything passed by the other chamber or even the concerns of the majority of the chamber. There is just no way past these two gatekeepers and thus they have vastly overarching power that was never granted vis-a-vie the Constitution.
It is also important to note that nothing in the Constitution nor the Senate rules give the Senate Majority Leader any type of power or control; that has only come about from tradition and precedent. From a Constitutional perspective, the President/President pro Tempore of the Senate should be the one in charge, yet that position has become almost completely ceremonial.
Therefore, we have a problem where two people have a monopoly control over the country that was never granted to them and power over other legislators that are supposed to be their equals. It does not matter if a Representative is 25 years old and just elected or been serving for 50 years, they are 100% equal in the eyes of the Constitution. As such, we need to make some changes to the Constitution in order to rip back what never should have taken root in the first place and make sure Congress can function nominally.
By Amendment to the Constitution of the United States, Article 1, Section 11 shall be added.
Article 1 currently ends at Section 10. Amendments to the Constitution have been written as their own Articles which is inherently confusing because the Constitution is written in an order of specific themes. By tagging Amendments as Articles and not adjusting the original text, it makes a disjointed read and difficult to discern which is current law. As shown in the prior section, it will be more helpful to adjust the original text and merge the Amendments in where plausible (see the Appendix for a complete view of this in a finalized re-written Constitution). In this case, we are going to add an entirely new section to the existing documentation with its own clauses.
Clause 1 shall read:
The Speaker of the House of Representative and the President or President pro Tempore of the Senate shall be responsible for scheduling all debate and voting of their respective chambers.
While the positions of Speaker of the House and President/President pro Tempore of the Senate are laid out in the Constitution, there is nothing that states what those responsibilities include. This Clause is focused on giving them a very specific responsibility: setting the agenda and calendar for debate and voting. Notice, as well, that is it the President of the Senate (the Vice President of the United States) or the President pro Tempore who are setting the agenda in the upper chamber and not the “Majority Leader”. Being that that Majority Leader is not a recognized position, we should work in the framework of the Constitution to grant responsibility to an existing position.
Thus far, this codifies what is happening today in the House and shifting the responsibility in the Senate — yet to the same result. Here, two people still have control over what their respective chamber is doing at any time. Therefore, the rest of the Clauses need to limit that control and make sure all Representatives and Senators are equal, as well as create checks on power overall from other branches of the government.
Clause 2 shall read:
Any legislation proposed by individual members of each chamber should be considered for schedule and voting by the leaders of the respective chambers. The leader of the chamber may refuse to add the legislation to the schedule, however if the legislation is sponsored by ten percent or more of the chamber it must be added to the schedule within thirty days of presenting the required sponsorship to the leader of the chamber.
Basically, this is a codification of how an item is going to come up for vote. The leader of each chamber should act as a gatekeeper because someone needs to be operations manager. But at the end of the day, they are subordinate to the will of all other legislators. The first part of this Clause makes it so anyone can present an item to the leader and the leader can just add it to the agenda with no questions asked. However, given there is a possibility for extreme fringe views to make it into a chamber (especially the House of Representatives), the leaders do have a filter mechanism to control what would ultimately waste time.
That is where the next override comes into place where the legislator who proposed the item need only get 10% of their chamber to say they want it on the agenda. Important to note that is not 10% of the chamber supporting the legislation, just that they agree that it should be heard on the floor and debated. Following that, there is a time limit for the leader of the chamber to get it on the agenda so they cannot stonewall the desires of a minority position. The threshold is large enough to remove the most fringe elements while at the same time allows those with a minority opinion to be heard and received in a timely manner.
Clause 3 shall read:
The Vice President of the United States — as President of the Senate — may propose legislation that must be added to the schedule and voted on within thirty days.
While it is an odd bit of the Constitution that the Vice President of the United States is the President of the Senate, there is a reason for this. Remember that we always want to make sure one branch of government should not have complete power over the other and that each is constantly kept in check by the other two. This position of the Vice President is a check of the Executive Branch on the Legislative Branch by making sure the legislature takes into consideration the concerns of the Executives. Much like minority representation in the prior Clause, this one gives executive representation in the law-making process.
Here, let us reiterate that that the Vice President is still a non-voting member and can only act basically as a meeting organizer. The tie-breaking voting power he did have we removed earlier, for reasons that will become clear shortly.
Clause 4 shall read:
Any order by the Supreme Court or delegated Federal Court to create new law or modify existing bills and law must be done within the timeframe designated by the Court.
Much later in this treatise we will return to Judicial Branch and its rights, responsibility, and limits thereof, but this is a taste of what is to come. Much like the Legislature, nothing in the Constitution has told the Judicial Branch how to function and what it can do. One of the abilities the Judicial Branch has granted itself is the ability to create law via judicial review. While judicial review is important in determining if a law is Constitutional or in violation of another law, it is an overreach by the courts to take on the task of determining what the legislation should have been when the Constitution or law is silent.
As such, a barrier needs to be put in place that stops the Judicial Branch from creating law because that is not their job. However, the courts should have the ability to compel the legislature to create law based upon the discoveries of the court. If the courts find that the law is lacking in a situation or the law as written has flaws, then the courts should have the ability to demand that the law-making body itself revisit and fix this.
Much leeway should be given to the courts in these decisions and in what timeframe they want Congress to correct the issues. Therefore: minor legislators, the executive branch, and the courts would have the ability for bills, laws, and adjustments to be introduced. But at the end of the day, it would still be 100% the responsibility of the Legislative Branch to make the law (and in this case the President to sign off on the updates). This separation of responsibility is critical to removing overreach by any branch and keeping roles completely distinct.
Meanwhile, the courts will need a mechanism to enforce this and other rules, but we’ll return to that in Clause 10. In the meantime, there is more to the process that must be considered before we look at enforcement of said process.
Clause 5 shall read:
Any legislation that shall pass through either chamber of Congress must be scheduled and voted on by the other chamber within ten days.
Here we move into the process whereby the leaders nor the majority party of an individual chamber of Congress cannot stop legislation from moving through the next step. While in Clause 1 we established the responsibility of setting the schedules, here we taper that power further by making it clear that there is a responsibility to call a vote on something that has passed. In this way, this clause will remove the un-Constitutional power that the Speaker of the House and the Majority Leader of the Senate have bestowed upon themselves and level the playing field between each chamber. No matter what, then, a piece of legislation must be heard in the other chamber and voted upon.
TO BE CONTINUED…